Richard Prince and the art of Fair Use

In a world where it has become incredibly easy to make exact copies of others work, when, if ever, does that work become your own?

This is the overriding question in a New York Times article, published on December 6th, entitled If the Copy Is an Artwork, Then What’s the Original?.

The article, written by Randy Kennedy, is about the working methods of the artist
Richard Prince. Mr. Prince’s art is currently being celebrated in a 30-year retrospective at the Guggenheim Museum in New York City.

One of the methods Mr. Prince uses to create his art is to take photographs of other existing photographs that he finds published as advertisements in magazines.

The strength of the art is that the images he photographs, once removed from their function as advertisements, comment on our culture showing us archetypical images of our society – images that Madison Avenue ad execs have learned have great power. One of Prince’s favorite co-opted images is the Marlboro Man.

But it seems some of Mr. Prince’s photographs are nothing more than enlargements of existing photos. Mr. Prince has done little more than make the decision that the image matches his artistic sensibility. He then calls his enlargement of the existing photo his work and sells that work for increasingly high dollar values. In fact, one of his Marlboro Man pictures set an auction record for a photograph selling for 1.2 million.

The NY Times article centers around Jim Krantz, a successful commercial photographer who took several of the Marlboro Man ad photos “appropriated” by Mr. Prince. One Prince photograph, which sold at Christie’s for $332,300, is an exact duplicate of Mr. Krantz’s original except that it has been blown up to a huge size. Mr. Krantz says, “there’s not a pixel, there’s not a grain that’s different.”

Jim Krantz was paid by the Philip Morris Company for the original photos but has received nothing from Richard Prince. To date, Krantz has asked for no monetary compensation. He is asking for some type of acknowledgement or credit as the original photographer. After all, it’s not just the photo itself, it’s the composition – the conception, the pose, the exact moment to capture – these things were decided by Krantz and re-used by Richard Prince.

The matter provides a stunning look at the challenges facing interpretations of the Fair Use statue within US copyright law. The NY Times article says…

Mr. Krantz, who has shot ads for the United States Marine Corps and a long list of Fortune 500 companies including McDonald’s, Boeing and Federal Express, said he had no intention of seeking money from or suing Mr. Prince, whose borrowings seem to be protected by fair use exceptions to copyright law.

My interest concerns whether Mr. Prince’s use of other people’s photographs truly qualifies as fair use. Here is the law….
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In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include: 
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
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(1) clearly Richard Prince’s art is of a commercial nature.
(2) a photograph is a copyrightable work.
(3) in some cases, it appears that Prince has used 100% of the copyrighted work.
(4) this is the main issue – the effect upon the potential market for or value of the copyrighted work – when an ad campaign is over, do the elements of the campaign, the photo, the copy, do they have any further value? Has the use by Prince harmed the further value of the photograph? This would be the crux of any fair use challenge.

Mr. Krantz said it best, “If I italicized ‘Moby Dick’, then would it be my book? I don’t know. But I don’t think so.”

Though Jim Krantz owns the copyright to most of his photographs, he no longer owns the copyright to the Marlboro Man photos. The Philip Morris Company, the maker of Marlboro cigarettes, owns the copyright. Any fair use challenge to Richard Prince’s art would have to initiate from Philip Morris.
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UPDATE: A year later, in December 2008, Richard Prince would lose a copyright infringement suit when the judge ruled his use of photographs by Patrick Cariou was not Fair Use as outlined by copyright law.
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UPDATE: Just want to reference this very good article which was published in the Wall Street Journal, March 25, 2011 entitled When Appropriation Masquerades as Reconceptualized Art. The writer, Eric Felten, reports on the Patrick Cariou vs Richard Prince/Gagosian Gallery copyright infringement case which involved Prince’s use of photographs from the book “Yes, Rasta,” by French photographer Patrick Cariou. Cariou spent six years taking pictures of Rastafarians in Jamaica. Prince lost the case.
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6 thoughts on “Richard Prince and the art of Fair Use

  1. Philip

    Thank you for writing this sensible piece about this nonsensical “exhibition” and its nonsensical “art.”

    Outraged and amazed by the same NYTimes article, I went to see the show on its final day at the Guggenheim. (FYI: I would not and did not pay any admission and I took as many photos as I could despite the fact, or perhaps due to the fact, that there are signs on every floor of the museum saying that Photography is forbidden. Nothing was going to stop me from taking photos of photos which were taken of photos.)

    I went in order to see for myself whether there was anything one could call “art” anywhere in this thing and whether these myriad stolen images on the walls of this significant art institution were anything other than someone else’s work. I came away with one clear and strong impression: Richard Prince is not an artist, he is collector – of photos, of ads, of 8×10 publicity shots, TV Guides, posters, books, magazines, cartoons, etc. It was more like wandering through a collector’s memorabilia shop full of comics in plastic sleeves and signed stills under glass than walking through a museum. There was no new art to be found in any of it. Despite the curators’ copious lines which try to turn these stolen images into art, they themselves are just collected cartoons, photos, jokes, etc. displayed on a wall. If they have any artistic value or merit, they had that long before Mr. Prince stole and collected them.

    If I had created any one of these images in the first instance, I would be suing Richard Prince and anyone else culpable in a New York minute. And I believe I would win – and quickly. While you rightly point out that there are four measures of “Fair Use,” you neglect to point out that in determining fair use, having one of the four as a possible gray area is not enough to grant a fair use claim. I agree with your assessment of items #1 through #3 and, by their measure, Prince’s stuff can not be seen as fair use. There is also a strong argument to be made that Prince’s stolen imagery has harmed the use of those images and the money which might be made from them by the copyright holders (#4), but even if you do not agree with this, 3 strikes and you’re out: the top 3 items still point unequivocally to an utter dearth of any fair use claim. In my reading, if it is not educational/research driven and it has taken 100% of a copyrighted work with no alteration or clear comment it is not fair use and you do not have to even look at the last item to determine anything further. That last item might only come into play when the other three items might be gray areas, which in this case they clearly are not.

    In the end, I suppose I can not blame Prince for hoodwinking the art establishment and making millions off everything from stolen photos to his own dingy house in Rensselaerville, New York but I do blame both the copyright holders of the work he pilfers (for not pursuing him in a court of law) as well as the art establishment and the millionaire collectors for calling him “artist” and paying him anything at all, let alone the uber-artist rates he gets. If they really love his images, they should simply “appropriate” them. I could do any one of his Joke paintings in my living room or take a photo of a magazine ad and blow it up and it wouldn’t cost me more than $50. Why would I pay $700K or more for the same thing? And in any case, wouldn’t such “appropriation” be the sincerest form of flattery for such an “artist” as this? He taught us that that is what you do: you steal, you collect, you display, but you do not acknowledge the creator nor pay him anything for his work. Just take it, one way or the other. That is the sad lesson of Richard Prince.

    In a world in which everything is art, nothing is art.

  2. Raist

    I am 100% with Philip on this one. I read about this here and there after a CalArts student told me about this.

    MINDBLOWING. Where is copyright law in all this? If I was Jim Krantz or Marlboro I would sue this guy to death. This is not art, nor artist, this is a thief plain an simple. And it’s a complete utter shame Guggenheim is giving him any “air time” whatsoever.

    I had to re-read this again and again because this is the most ridiculous thing I have read so far in 2008 (not this article, but about what Richard Prince is doing in several other links), just to make sure I wasn’t misinterpreting. How can *anyone* defend this plagiarism is stunning. I wonder what kind of crack cocaine cult neuro linguistic viral marketing re-programming process -viral marketing process is involved in making such a brainwash as to accept this thievery as legitimate art and “ok under the law.”

    - Raist

  3. Philip

    Thanks, Raist. Glad you concur with what should be obvious to everyone but, stunningly, is not.

    It is stunning in its audacity and the sheer magnitude of the rip-off.

    As to Jim Krantz, he does not own the copyright to the photos he took which Richard Prince stole. Philip Morris (owner of the Marlboro brand) does. And they probably (and rightly?) see the re-use of their ad’s images as further dissemination of their brand without them having to pay one dime for that dissemination. It is win/win for them and they don’t need the $500K or so they might net from a legal battle with Prince. If I were them, I would wage such a battle (quick as it would be) on principle alone, but the people at Philip Morris can hardly be cited for their principles or strong moral fiber.

    Just like a cigarette, this one stinks not matter where you stand.

  4. gg

    i think that the above posters fail to appreciate – their choice entirely – that transformative power that the prince images gave to the original krantz ones, a transformation that is seated in both the nature and potential of art, but also in the nature and potential of popular culture and mythmaking at the level of the visual, of the icon.

    i do wish that prince would have (did he?) spoken jim krantz’s name when speaking of this work, as opposed to the rather glib and sadly stereotypical rhetoric of his role as an artist and blah blah blah. however, prince’s heralding of this ad series as “american icon” does indeed, imo, further what the art directors at philip morris set out to do initially, at the same time that it strips away the text and intent of selling cigarettes. the result of this strategic move is that the strategies of advertising are revealed as product disappears and aura is amplified.

    marlboros were sold upon the premise of a tough american man, cigarette box in tight white t-shirt sleeve; the move to the cowboy and the open landscape of freedom was rather brilliant as ad campaigns go. but these images were never presented as “art”, as images of splendid signification and aesthetic value, rather they supported the selling of cigarettes. by focusing on the dreamy cinematic images themselves, prince is showing us how we are sold and what we are sold: ideas and images (ie: icons), not products. AND he is, again imo, displaying krantz’s images in a way that they deserve, and indeed are entitled to, be seen. i suspect this is why krantz doesn’t want money or lawsuits, just credit.

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